In this episode, we sit down with lawyer and Harvard Law School Professor Emeritus Alan Dershowitz to discuss the 2020 election, the status of President Trump’s challenge, and Dershowitz’ take on calls for Harvard to blacklist people affiliated with the Trump administration.
This is American Thought Leaders 🇺🇸, and I’m Jan Jekielek.
Jan Jekielek: Alan Dershowitz, such a pleasure to have you on American Thought Leaders.
Alan Dershowitz: Thank you so much.
Mr. Jekielek: Alan, former Vice President Biden is apparently forming a cabinet as we speak. We have many corporate media that have called the election, are calling him the president-elect. Of course, as time progresses, this seems to [be] becoming more and more of a reality. What is your take?
Mr. Dershowitz: I think that Joe Biden will become the president of the United States on January 20. He’s not yet the president-elect because not enough states have certified the electoral votes to make him officially the president-elect, but he will be the president. I think that President Trump is running out of legal challenges. He may have the law on his side in Pennsylvania and maybe some other states, but he doesn’t have the numbers or the evidence at this point in time.
The margin of victory in Pennsylvania seems to exceed the number of challenged votes and the evidence of computer glitches or tampering, I haven’t seen it yet. So at the moment, we have to assume that there is no such evidence, and therefore, I think it’s only a matter of time before President Trump will stop his legal challenges.
Maybe he will concede, maybe he won’t concede, but I hope he will immediately start cooperating with the transition. That’s very important, particularly on issues like the coronavirus and national security.
Mr. Jekielek: So is your advice, you’re saying that he should concede?
Mr. Dershowitz: I’m saying that he should not in any way interfere with the ongoing transition process. He can say what he wants—I don’t think that’s particularly significant—but he should only issue challenges where the challenges are completely legitimate. But I don’t, at this point, see a road to reversing the election that is in any way real.
Mr. Jekielek: Well, so let’s talk about a few specifics. I’m just curious. This weekend, there was a Pennsylvania lawsuit that was dismissed. I think it was whittled down from seven counts to two. But his counsel, Rudy Giuliani, is saying that this is a positive development. It’s now in the Third Circuit. It might go to the Supreme Court. He sees that as a positive thing. What do you think?
Mr. Dershowitz: I think legally, it is positive. And legally, I think they have some plausible arguments on the law. The problem is, they don’t have the votes to back it up. I don’t think they have enough challenged votes to overcome the what looks like 60, 70, 80,000 vote margin of victory for Biden. You don’t win cases just by having a law on your side. You need to have the facts on your side as well.
Mr. Jekielek: So people have been talking about this “Safe Harbor” deadline, December 8, an important date. What is the significance of that? What does that actually mean? What needs to happen before then, and what can still happen after then?
Mr. Dershowitz: It’s not as significant as the December 14, when the electors actually meet and elect the president of the United States. And so, up until December 14, indeed on December 14, literally, you could have electors change their minds. And unless there are 270 electors—and I think there will be—for Joe Biden, the election would go into the House of Representatives. So it’s mid-December—that’s the important date.
Mr. Jekielek: Right. I’ve actually discussed this with other folks on the show, this idea, strategy to lower the number of electors below 270 for either candidate. What would it actually take to do that, in your mind?
Mr. Dershowitz: It would be very, very difficult. It would take more than a perfect storm. First of all, you’d have to get enough states—Pennsylvania, at least two other states—not to certify the winner of the election.
Then you’d have to look at the words of the Constitution because they say that you need a majority of the electors appointed. And the question is, what does “appointed” mean? Does it mean electors who were actually voted on, or electors who are actually certified? Because if you bring down the number of electors, you will also bring down the number required to form a majority of those electors. So these are complicated issues. I don’t think we’ll reach them because I think that Joe Biden will have the 270 needed on December 14.
Mr. Jekielek: So let’s talk a little bit about Sidney Powell’s allegations that so far that she’s made. She says she is going to be bringing a lawsuit, as I understand, this week, and that she is—I may be paraphrasing here—but that she’s seeing that she has evidence of systemic large-scale voter fraud that would have flipped the election. That’s what she’s saying, and she says she’s going to present that this week.
Mr. Dershowitz: As I understand it, she is not presenting it on behalf of President Trump. My understanding, just what I read yesterday in the newspapers, is that the Trump legal team has said that she doesn’t speak on their behalf on these allegations, particularly the allegations of corruption in Georgia. And we’ll wait and see what evidence she presents.
I guess she could be doing it on behalf of another client, perhaps the Republican Party or individuals who are disenfranchised. But my understanding is that she’s not going to be doing it on behalf of President Trump. Again, you’d need to show hard evidence, subject to cross examination, that there was actual corruption which actually shifted votes from one candidate to the other. And I think that’s going to be, if not impossible, very difficult to do.
Mr. Jekielek: What is the significance of this, actually? Basically, she has said that she agrees with the characterization that the Trump campaign has made. The Trump campaign seems to be still positively inclined to her—that’s the kind of indication that I’m getting. But what is the significance of this being a separate lawsuit altogether?
Mr. Dershowitz: I don’t know. I’m not privy to what goes on within the Trump legal team. I know that the Pennsylvania case, legally—because I read the complaint—is a strong one, both in terms of Article Two of the Constitution saying that only legislatures get to determine the rules, and the Equal Protection Clause. Both arguments I don’t personally agree with, but the Supreme Court may well agree with those arguments.
And my job, as an objective analysis, is not to tell you what I hope will happen or what I want to happen, but what I think will happen. And what I think will happen is that if Pennsylvania, if there were enough votes, challenged votes to overcome the margin of victory, I think very likely the Trump team might prevail, on legal theories in Pennsylvania, on the two legal theories—Article Two, Equal Protection.
But the courts are not going to take those cases unless the numbers justify it, unless ruling in their favor would result in a reversal of the vote in the election for the state, and I don’t think [inaudible].
Mr. Jekielek: I understand. Just to go back to Sidney Powell here for a moment. What would be the implications for her personally, as an attorney, if it turned out that what she’s saying isn’t factual or isn’t, at least in part, factual?
Mr. Dershowitz: Well, lawyers are allowed to say what they want. They have the same First Amendment rights that any of us have. But the issue is whether she said anything in court pleadings that are not supported by the evidence. Lawyers are supposed to make allegations in court only if they’re supported by the evidence. If she has a good faith belief in what she’s saying, then she’s not done anything unethical or improper. But she has to have a good faith belief, and she seems like a very sincere person.
Mr. Jekielek: I wanted to ask you about this. The attorney general has basically green-lighted investigation of these issues in the Department of Justice. If some case comes out of the Department of Justice, does this change anything?
Mr. Dershowitz: I don’t think so. The Department of Justice generally would investigate wrongdoing. As far as I know, Attorney General Barr—who’s a decent person, I think—has said he would green-light investigations if there was a basis for it, if there was a strong evidentiary basis for it. And I haven’t seen any suggestion that there are any actual investigations ongoing.
Look, theoretically, if it were to turn out that the computers were rigged or there were glitches, that could have a big impact. But I haven’t seen the evidence of that, and allegations without evidence in court are worthless.
Mr. Jekielek: People have also been saying that it takes time to gather this kind of evidence, so it seems to be a kind of a race against the clock. So really, it’s basically December 14, if there isn’t anything substantial that’s presented before then, it’s basically over in your mind?
Mr. Dershowitz: I think the legal challenges are over. Historians will still look to see whether there is any evidence. We operate not only in courts of law, but in a democracy. We operate in courts of public opinion. And I’m sure people like Sidney Powell will continue their investigations, even after mid-December.
Mr. Jekielek: There’s a considerable number of Americans, as we speak, who have doubt in the election. And there’s certainly, I don’t know if there’s thousands, but there’s certainly hundreds of signed affidavits of people saying there were gross irregularities, that they saw things that they believe were fraud, certainly enough to cast doubt on the validity at some level.
Of course, the big question is whether this could actually have changed the result, as you mentioned. That is the big question. But what are the implications for the country of this kind of reality, never mind if it’s demonstrated the large-scale, systemic thing that, say, Sidney Powell is alleging?
Mr. Dershowitz: Well, these retail challenges, these retail claims of fraud—a case here, a case there—we’ve had that all through our history. We certainly had it in the 1960 election, where there were allegations of fraud in Chicago that Nixon claimed against Kennedy. We certainly had it in 2000, where African American voters were discouraged from voting, long lines. And we certainly had it in 2016.
I think every election is accompanied by some allegations of fraud. And I would say every election has some fraud. It’s impossible to conduct an election with 150 or more million people without some fraud, some mistakes, and some errors. The question is how extensive, and the balance that has to be struck, that is voter suppression.
You want to maximize the number of voters coming out. So for example, mail-in ballots. This has resulted in the largest number of voters in American history. Some of them will be fraudulent. But on balance, it’s better to get more voters out there voting, even if there is a slight increase in the number of fraudulent ballots.
We have to independently try to prevent fraud. But that shouldn’t impact on our desire to get the most voters to the poll in whatever means we can get them to the polls as long as their votes are legitimate and honest.
Mr. Jekielek: Right. I believe that both former Vice President Biden and President Trump have gotten the most votes of any president historically, right—first and second, depending, of course, how all this plays out, ultimately. A number of experts that I’ve spoken with say that the idea of mail-in ballots at this scale opens up this door to, well, let’s say fraud, certainly, at a much larger scale, but also changes the nature of the whole kind of election process. So for example, a combination between large-scale mail-in balloting and ballot harvesting where it’s legal activities result kind of a fundamental change in the nature of the voting process.
Mr. Dershowitz: I think that’s true, and I think on balance, it’s a good thing. I think it gets more people out. I have never before until this year voted by mail. I love going to the ballot box. I first went there to vote for John F. Kennedy, and I’ve gone every four years, every two years, every year. I go and I vote.
This year, I’m 82 years old. I don’t want to endanger my health or the health of my family, so I voted by mail. I certified the letter. I then checked online to make sure it was received. So my vote was perfectly good.
I’m sure that when you have extensive mail-in voting, it does open up the opportunity for mistakes and for fraud. The question is how do you strike the balance? I think this is going to be the wave of the future. I think we’re going to have more votes by mail. I think we’re going to probably move toward some kind of computerized voting if it ever becomes safe from potential hacking.
The technology is going to have to respond to the reality that more and more people would like to vote without having to go to the polling place. Whether that would be a good thing or a bad thing, only history will judge. But it was essential during this election because of the pandemic.
Mr. Jekielek: A number of people have argued, including in our pages, that there have been essentially four, if not five, years of kind of political campaigns, very deliberate political campaigns against the president. You represented him in one of these, which would have been the impeachment proceedings and so forth, and people are saying, “Well, this whole kind of voter situation is just another extension of these campaigns.” Your thoughts?
Mr. Dershowitz: We’ve seen them on both sides. Remember when Hillary Clinton was running for president, there were Republicans who were yelling, “Lock her up, lock her up,” promising to impeach her the day she got elected. If she had been elected president, we would see the same thing. And the shoe is on the other foot. And so you see these kinds of weaponization of the criminal justice system on both sides.
I’m confident that if Hillary Clinton had been elected, she would have been impeached, and maybe I would have defended her. I would have gotten a lot more friends having defended her than I got defending President Trump on the floor of the Senate. But what we’re seeing is the weaponization of the criminal justice system against political opponents. It’s wrong on both sides, and I hope we finally can see it end.
I think Joe Biden, who I’ve known for a long time, is a guy who might very well help to bring the country together because he’s not an extremist, and he’s a guy who is a conciliator by nature. We’ll see. We may see four more years of a deeply divided country, but we may not, and I hope we’ll see us move closer together.
I was hoping that the coronavirus, with all of the great threats it poses, would bring us together. Instead, it divided us even more. So everything seems to divide, not only Americans, but the world is a very divided place these days.
Mr. Jekielek: Well, and another place of division. So I’ve been kind of following a little bit of what you’ve been talking about recently, notably, this idea that perhaps at Harvard University, people who have been supporters or worked with in any way the President or his people might be blacklisted from speaking or working at the university. Can you speak to this?
Mr. Dershowitz: Sure. The hard left has never believed in free speech or due process. AOC, the radical congresswoman from New York, has proposed a blacklist of people who worked on the Trump administration or who worked with the Trump administration.
Students at Harvard have issued a petition calling for kind of reeducation camps, like in the Chinese communist government or in the former apartheid South Africa, re-educating people like me, who taught at Harvard for 50 years, before we can come to Harvard and speak our voices.
I’m going to challenge that. I’m putting together a legal team. We will provide pro bono legal assistance to anybody who is banned or canceled or prevented from speaking at Harvard or other universities because of any association with any political candidates.
I’m going to deal with this as if it were the opposite, as if it were white supremacists who said, “We’re not going to let anybody who had anything to do with Barack Obama or the Obama administration speak at Harvard.” So I’m going to fight as strongly against what they’re currently doing as I would have had the shoe been on the other foot. I think we will succeed.
Mr. Jekielek: How strong is the support for this at a place like Harvard?
Mr. Dershowitz: I think it’s quite strong among students on the hard left. The opposition to it is quite strong as well. The key is what the administration will do, what the faculty will do. There are some faculty who support this as well. There are faculty around the country who believe in censorship. One even purported to claim that she was or he was in favor of book burning.
It was Heinrich Heine who once said, “If you begin by burning books, you’ll end by burning people.” And if you begin by censoring speech, you’ll end by burning books. So this is a fight that we have to continue to fight. It’s a fight for liberty and freedom.
It’s a fight that all liberals, whether you’re on the center-right or center-left, should support against the radicals of the extreme left and the radicals of the extreme right, who also favor censorship and book burning. So we need to move our country more toward the center where centrist liberals can argue with centrist conservatives, but we marginalize the extreme-left and the extreme-right. That’s what makes America thrive.
Mr. Jekielek: Alan, one final question. You’ve said before that you believe the President has the right to exhaust all potential legal avenues he has. Once again, could you summarize for us what is the timeframe at this moment as we’re speaking. And I know you don’t think it’s likely, but what is the path to an actual recourse here?
Mr. Dershowitz: I don’t think the president now has a reasonable path to reversing the election. He has some legal options available, particularly in Pennsylvania under Article Two and the Equal Protection Clause, but I don’t think he has the numbers to back his legal theory. There has to be enough of a difference between the margin of victory. Say the margin of victory was 50 or 60,000. He has to be able to challenge at least 50 or 60,000 votes, and I don’t think he has that.
So I think his path to victory is narrowing, narrowing, and narrowing to the point of disappearing. And I do think that the president ought to be cooperating and his administration actively cooperating with the presumptive president-elect Joe Biden to allow the transition to go forward in the interest of the American people, particularly relating to the coronavirus and national security issues.
Mr. Jekielek: Alan Dershowitz, such a pleasure to have you on the show.
Mr. Dershowitz: My pleasure. Thank you so much.
This interview has been edited for brevity and clarity.